COURT OF FINAL APPEAL, HKSAR
CHIEF JUSTICE GEOFFREY MA
JUSTICE KEMAL BOKHARY PJ
JUSTICE PATRICK CHAN PJ
JUSTICE R.A.V. RIBEIRO PJ
SIR ANTHONY MASON NPJ
13 DECEMBER 2010
Chief Justice Geoffrey Ma
The issue before the Court is whether a finality provision (that is, one that curtails the right of appeal from the decision of a court) contained in the Legislative Council Ordinance, Cap.542 (“the LCO”), is constitutional. The relevant provision is s.67(3) of the LCO which states that, in the case of an election petition questioning the election of a member to the Legislative Council, the decision of the Court of First Instance shall be final as to the matters in issue.
There are a number of facets which will have to be considered. I will presently identify them after first dealing with the background to this case.
After polling day on 7 September 2008 in the elections to the Legislative Council, the first respondent (Dr Tam Wai Ho) was declared by the Returning Officer (the second respondent, who has taken no part in the present appeal) to be elected to the Council for the Information Technology (IT) functional constituency. He had received 2,017 votes while the only rival candidate, the petitioner (Mr Charles Peter Mok) gathered 1,982 votes; the margin was 35 votes. Notice of the result was published in the Gazette on 12 September 2008.
On 10 November 2008, the petitioner lodged an election petition seeking an order that he be instead declared the winner for the IT functional constituency. It was asserted in the petition (as amended) that material irregularities occurred in the election, and that the first respondent had engaged in illegal and corrupt conduct.
The election petition was tried by Reyes J on 7 and 9 April 2009. In a judgment delivered on 9 April 2009, the learned judge dismissed the petition with costs. He held that the petitioner had failed to establish there was any material irregularity nor any illegal or corrupt conduct on the first respondent’s part. In view of the nature of the issue before this Court, it is not necessary to refer further to the details of the dispute before Reyes J nor his findings on them.
The petitioner sought to appeal from this decision to the Court of Appeal. On 3 December 2009, the Court of Appeal (Tang VP, Yeung JA and Lam J) unanimously dismissed the appeal. It is clear from the reasons for judgment handed down on 11 December 2009 that the only ground for doing so was that the Court of Appeal was of the view that it lacked jurisdiction, in that s.67(3) of the LCO barred any further appeal from the Court of First Instance on an election petition. The Court heard arguments on whether that provision was constitutional and held, applying the proportionality test (to which I shall return below), that s.67(3) was constitutional and therefore valid. I should mention that at the appeal stage, leave had been given to the Secretary for Constitutional and Mainland Affairs to intervene to argue the constitutional issue (and leave to intervene was similarly granted to the Secretary in relation to the present appeal by a consent order dated 18 March 2010).
Following the dismissal of the appeal, the petitioner sought to appeal directly to this Court. This was of course not possible and after this was pointed out to the petitioner at the hearing before the Appeal Committee on 26 March 2010, the petitioner then sought leave from the Court of Appeal to appeal to the Court of Final Appeal. This having been refused, the petitioner applied to the Appeal Committee for leave. On 2 June 2010, leave was given on the following question of great general and public importance:-
|Are the provisions of section 67(3) of the Legislative Council Ordinance making the determination of the Court of First Instance as certified at the end of the trial of an election petition final inconsistent with Article 82 of the Basic Law and therefore unconstitutional?|
B. THE CONSTITUTIONAL AND STATUTORY CONTEXT
From the said question before us, it will at once be seen that the following issue arises to be determined in this appeal: whether Art.82 (dealing with the power of final adjudication vested in the Court of Final Appeal), assuming it to be engaged, has been infringed by s.67(3) of the LCO. Before addressing this issue, I must first examine the constitutional and statutory context relevant to this case.
The Basic Law:-
Article 26 gives permanent residents of the HKSAR the right to vote and the right to stand in elections in accordance with law. This is mirrored in Art.21 of the Bill of Rights contained in the Hong Kong Bill of Rights Ordinance Cap.383. The right to vote has been described as “without doubt the most important political right”: Chan Kin Sum v Secretary for Justice  2 HKLRD 166, at 221 (para.164).
In relation to the Legislative Council, Arts.66 to 79 of the Basic Law refer to the duties, composition, procedures, elections and other matters relevant to it.
For the Judiciary:-
Article 81 states in terms that the judicial system previously practised in Hong Kong shall be maintained except for the changes consequent of the establishment of the Court of Final Appeal. That Court has replaced the Judicial Committee of the Privy Council at the apex of our court structure: see Solicitor v Law Society of Hong Kong (2003) 6 HKCFAR 570, at 584 (para.28). It will be necessary to discuss this case further below.
Articles 82 and 83 state:-
The power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region, which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal.
The structure, powers and functions of the courts of the Hong Kong Special Administrative Region at all levels shall be prescribed by law.
I should also mention Art.35 of the Basic Law which was relied on by the petitioner in this appeal. That Article refers to the right of access to the courts.
As Art.83 of the Basic Law indicates, the structure, powers and functions of the courts are to be prescribed by law. We are, however, concerned in this appeal with the function of final adjudication vested in the Court of Final Appeal under Art.82, and the restriction or limitation that is said to be placed on that function (by s.67(3) of the LCO).
The Hong Kong Court of Final Appeal Ordinance Cap.484 (“the HKCFAO”) sets out the jurisdiction, structure and powers of the Court of Final Appeal. Appeals to the Court are circumscribed and leave to appeal is required in all cases. The relevant provision governing appeals to the Court in civil matters is s.22. Apart from the well known provisions regarding appeals as of right (s.22(1)(a)) and appeals at the discretion of the court where a point of great general or public importance arises (s.22(1)(b)), there is a third type of appeal where an appeal to the Court of Final Appeal is possible:-
at the discretion of the Court, from –
which put in issue whether the candidate is duly determined to be not returned at an election under section 26A(4) of the Chief Executive Election Ordinance (Cap. 569) or whether the candidate declared under section 28 of that Ordinance as elected at an election can lawfully assume the office of the Chief Executive.
I shall also be referring to the Chief Executive Election Ordinance Cap.569 (“the CEEO”) later in this judgment.
There are also restrictions placed on appeals to the Court of Appeal from a decision of the Court of First Instance. Section 14(3)(c) of the High Court Ordinance Cap.4 (appeals in civil matters) provides that no appeal shall lie to the Court of Appeal “from a judgment or order of the Court of First Instance, where it is provided by any ordinance or by rules of court that the same is to be final”. Section 67(3) of the LCO is said to be one such provision.
I now deal with the statutory scheme as relates to the Legislative Council. The relevant ordinance is the LCO. One of the purposes of the Ordinance, as the long title states, is to provide for the election of members to the Council. Apart from those provisions relating to legal proceedings (see paras 14 to 15 below), the following provisions can be noted for the purposes of this appeal:-
The term of office for the Legislative Council is 4 years: Art.69 of the Basic Law; s.4(1).
Members of the Legislative Council are elected as candidates in geographical constituencies (of which there are 5: s.18(1) or functional constituencies (of which there are 28: s.20(1)). Part III of the LCO makes provision for those constituencies and Part V provides for the registration of voters in the constituencies.
Part VI of the Ordinance contains provisions regarding the eligibility of members of the Legislative Council (s.37) and disqualification provisions (s.39). Some of these provisions reflect the eligibility and qualification requirements set out in the Basic Law.
After a person has become a member of the Council, the occurrence of certain events may have the consequence of that person having to vacate office: s.15.
Part VII of the LCO deals specifically with election petitions:-
The election of a person may only be questioned in an election petition on a number of grounds, including ineligibility, disqualification, corruption or illegal conduct and material irregularity: s.61.
Election petitions may only be lodged by either 10 or more electors entitled to vote at the relevant election or by a person claiming to have been a candidate in that election: s.62.
Election petitions are heard by the Court of First Instance: ss.64 and 67. Section 64(1) is important for present purposes:-
The Court has the same jurisdiction and the same functions in respect of an election petition as it has in respect of an ordinary cause of action within its jurisdiction.
The time limit for bringing a petition is 2 months following the date when the result of an election is published in the Gazette: s.65.
After the trial of an election petition, the court must determine whether the person whose election to the Legislative Council is challenged, is or is not duly elected, and if not, whether someone else should be determined to be elected instead: s.67(2).
The Court’s determination must be certified.
The certificate signed by the Judge is then delivered to the Secretary for
Constitutional and Mainland Affairs, the Electoral
Affairs Commission and also to the Clerk to the Legislative Council: ss.67(3) and (4).
The finality provision with which this appeal is concerned is contained in s.67(3):-
At the end of the trial, the Court must certify the determination of the Court in writing. The judge must sign the certificate and ensure that the seal of the Court is applied to the certificate. The determination as certified is final as to the matters at issue concerning the election petition.
Where a person has been elected as a member of the Council but subsequently is successfully challenged in an election petition, acts purportedly performed by him as a member prior to the certificate being received under s.67, will not be invalidated: s.71. This was a provision relied on by the petitioner.
Part VIII of the LCO makes provision for other legal proceedings. Sections 73 and 74 provide as follows:-
Proceedings against persons on grounds of disqualification
Period within which complaint or information is to be laid
Except as otherwise provided by this Ordinance, a complaint or information alleging the commission of an offence against this Ordinance must be laid within 3 years from the date of the alleged commission.
These provisions assume some importance in the present appeal.
I have already earlier made reference to the CEEO (para. 11 above). That Ordinance makes provision for the election of the Chief Executive. For our purposes, (again apart from the provisions regarding legal proceedings) the following provisions are relevant:-
The term of office of the Chief Executive is 5 years: s.3(1)(a).
The Chief Executive is elected by an Election Committee in accordance with Annex I to the Basic Law: s.7.
Like the LCO, the Ordinance also contains provisions regarding eligibility and disqualification: ss.13, 14 and 20. Again, some of these reflect requirements set out in the Basic Law.
The outcome of an election is to be publicly declared and published in the Gazette: ss.22(1AB)(c) and (d), 28.
Election petitions challenging the election of the Chief Executive are governed by Part 6 of the CEEO:-
The grounds on which an election petition can be mounted are similar to those for election petitions under the LCO, involving eligibility, disqualification, corrupt or illegal conduct and material irregularity: s.32.
The time limit for bringing an election petition is 7 days from the date an election result is declared: s.34(1).
Election petitions are heard by the Court of First Instance and, like the Court’s role in relation to election petitions under the LCO, it is to have “the same jurisdiction and the same functions in respect of an election petition as it has in respect of an ordinary cause of action within its jurisdiction”: s.36(1).
The CEEO also contains a non-invalidation provision similar to s.71 of the LCO: s.38.
Two important provisions, however, are to be found in the CEEO which distinguish it from the LCO:-
The first is the absence of a finality clause in relation to election petitions (cp. s.67(3) of the LCO). On the contrary, as we have seen, an appeal directly to the Court of Final Appeal is possible: s.22(1)(c) of the HKCFAO. The time within which any application for leave to appeal to the Court of Final Appeal is 7 working days from the date of judgment of the Court of First Instance: s.34(2) of the CEEO.
The second difference is the express reference to judicial review proceedings arising from an election of the Chief Executive. Section 39 states:-
Time limit for legal challenges
It should be noted that such judicial review proceedings are limited in scope in that the references to ss.26A(4) and 28 of the CEEO relate to the position where only one candidate for the post of Chief Executive exists.
C. THE NATURE OF THE ISSUE IN THIS APPEAL
It is of course for the courts to determine any questions regarding an infringement of the Basic Law.
An infringement of the Basic Law is asserted by the petitioner. It is submitted by him that a constitutional right of appeal exists under Art.82 of the Basic Law and that this right has been infringed by s.67(3) of the LCO. For his part, the intervener disputes that any such constitutional right exists in the first place, whether under that Article or indeed any other provision in the Basic Law. The first respondent made no submissions in this context.
In my judgment, this is not the appropriate way of addressing the issue of constitutionality in the present case. It is therefore important to focus on the true nature of the issue in this appeal. The question before this Court is not whether a constitutional right as such has been infringed. Rather, it is on analysis whether the power vested in the Court of Final Appeal of final adjudication under Art.82 of the Basic Law (which is a structural provision spelling out the function of the Court) is first of all engaged and if so, whether or not this function has been (from a constitutional viewpoint) justifiably restricted or limited by s.67(3) of the LCO.
It is necessary first to understand the true nature of Art.82 of the Basic Law.
As we have seen, Art.82 provides that the power of final adjudication for Hong Kong vests in the Court of Final Appeal. The Court functions as the final appellate body in our court system.
In Solicitor v Law Society, the Chief Justice clearly set out the Court’s function under Art.82:-
Nature of the Court’s power of final adjudication
The function of the Court of Final Appeal is to exercise the power of final adjudication vested in it by art.82. The crux of the matter is the proper interpretation of the Court’s power of final adjudication vested by this article. But the nature of the power of final adjudication must first be appreciated.
As has been stated, the purpose of the Court’s establishment is that it would replace the Privy Council as the final appellate court in the new order after 1 July 1997. The nature of its power of final adjudication must be considered in the context of the hierarchy of courts established by the Basic Law itself. This structure, in essence, is similar to that of the previous judicial system which the Basic Law requires to be maintained except for the Court replacing the Privy Council at the apex.
Having regard to the purpose of the Court’s establishment and the context of the hierarchy of courts, it is clear that the Court’s power of final adjudication, as contemplated by the Basic Law, is by its nature, a power exercisable only on appeal and indeed on final appeal. The Court’s function as envisaged by the Basic Law is not merely to exercise an appellate power, but a final appellate power which, by its nature, is naturally exercisable upon appeal from an intermediate appellate court, such as the Court of Appeal. The Court’s function is similar to the previous role of the Privy Council in relation to Hong Kong and is consistent with the role of final appellate courts in a number of common law jurisdictions.
There are, however, two important facets that must be appreciated in relation to this power of final adjudication.
First, access to the Court is not unrestricted under Art.82. Access to the Court can be and is regulated. In other words, there may be restrictions or limitations on the power of final adjudication by the Court. I have already referred to one such restriction or limitation: s.22 of the HKCFAO (see para. 11 above). In Solicitor v Law Society, Li CJ referred to the existence of restrictions or limitations as being implied under the power of final adjudication of the Court (at 584 (para. 30)):-
Limitation of the power of final adjudication
That being the nature of the power of final adjudication vested in the Court of Final Appeal by art.82, it is obvious that the intent of the Basic Law was not to give every party to every dispute a right to have the dispute resolved by final adjudication by the Court. By its very nature, the Court’s power of final adjudication vested by art.82 calls for and indeed requires regulation, which may include limitation. Such limitation is permitted by implication, having regard to the nature of the power. It may be dealt with by the enactment of statutes by the legislature or it may be dealt with by rules of court made by the rules committee exercising subordinate legislative powers.
Incidentally, I take this opportunity to clarify what may be an ambiguity in the reference in this passage to “a right to have the dispute resolved” by the Court of Final Appeal. This must not be taken out of context. It is clear from this paragraph read as a whole and from those other passages already set out that the Chief Justice was not referring to Art.82 as providing any constitutional right as such, but as setting out the function of the Court of Final Appeal. The reference to “a right” in this passage means no more than that and further, that the power of final adjudication vested in the Court and therefore a party’s access to it, may be restricted.
Secondly, any restriction or limitation on the power of final adjudication must satisfy the proportionality test. In Solicitor v Law Society, the Chief Justice said at 584-5 (paras 31 to 34):-
Courts do not have inherent appellate jurisdiction. Appeals are creatures of statutes, whether they be appeals from statutory tribunals to the courts or appeals from lower courts to higher courts. (In this case, one is not concerned with and need not discuss the right to seek judicial review from the courts). The legislature in providing for appeals in statutes may limit recourse to the Court for final adjudication and thus, may limit its power of final adjudication to appeals permitted by such statutes. But limitation cannot be imposed arbitrarily by the legislature. The limitation imposed must pursue a legitimate purpose and there must be reasonable proportionality between the limitation and the purpose sought to be achieved. These dual requirements will be referred to collectively as the proportionality test.
In the exercise of their independent judicial power, it is the duty of the courts to review any legislation enacted which seeks to impose any limitation on the power of final adjudication vested in the Court by art.82 and to consider whether the limitation satisfies the proportionality test. If the courts decide that it does not satisfy this test, the limitation must be held to be unconstitutional and hence invalid. The limitation imposed would have exceeded the parameters of proper limitation of the Court’s power of final adjudication vested by art.82.
In applying the proportionality test to a particular limitation, the purpose of the limitation must first be ascertained. In ascertaining its purpose, matters such as the subject-matter of the dispute, whether it concerns fact or law, whether it relates to substantive rights and obligations or only procedural matters, what is at stake, the need for speedy resolution and the cost implications of dispute resolution, including any possible appeals, will have to be considered. The legitimacy of any purpose will depend on whether it is consistent with the public interest, which of course has many facets, including the proper administration of justice. Then, in considering whether the limitation is reasonably proportionate to the legitimate purpose, it will be necessary to examine the nature and extent of the limitation.
Whether a particular limitation imposed by statute satisfies the proportionality test will depend on an examination of all the circumstances. There may be instances where a statutory limitation providing that a decision of the Court of Appeal or the Court of First Instance on appeal, whether from a statutory tribunal or a lower court, shall be final may be able to satisfy that test.
The proportionality test, which is a well known test in our courts, consists of the following analysis in respect of any restriction or limitation:-
The restriction or limitation must pursue a legitimate aim.
The restriction or limitation must also be rationally connected that legitimate aim.
The restriction or limitation must also be no more than is necessary to accomplish that legitimate aim.
As is also made clear by Solicitor v Law Society, the proportionality test can be applied to statutory restrictions or limitations that may, for example, provide that the decision of a court, at any level, should be final: at 585 (para. 34 (set out in para.27 above)). Art.82 is accordingly a provision that may have relevance to all levels of court or statutory tribunals in terms of the appellate process.
Where the proportionality test is satisfied, the restriction or limitation will be justified from a constitutional point of view. If not, the restriction or limitation will be held to be invalid.
The burden of satisfying the proportionality test is on the party who seeks to rely on the restriction or limitation to Art.82. In the present case, that burden falls on the first respondent and the intervener.
With these principles in mind, I now approach the issue before us: the constitutionality of s. 67(3) of the LCO.
D. IS ARTICLE 82 OF THE BASIC LAW ENGAGED?
I have already made reference to the petitioner’s argument that a constitutional right to appeal has been infringed (see para. 20 above).
Although the petitioner has made reference to the right to vote (Art.26 of the Basic Law), his principal contention was essentially that there has been an infringement (in the form of s.67(3) of the LCO) of a constitutional right of appeal. However, as discussed earlier, this is not the correct question to be addressed. The issue on appeal concerns the validity of the restriction or limitation on the function of the Court of Final Appeal under Art.82, rather than a constitutional right of appeal.
I should perhaps at this point also deal with Art.35 of the Basic Law, which was relied on by the petitioner. In my view, this article does not advance the argument much further at all. That article deals with access to the courts (among other matters). It is not a provision that sheds much light on the issue with which we have to grapple.
For his part, Mr Michael Thomas SC (who appeared for the intervener) is correct when he observes that nothing in the Basic Law states in terms that a right of appeal exists against decisions of the courts. Art.83 of the Basic Law states that the structure, powers and functions of the courts in Hong Kong shall be prescribed by law. Mr Thomas is also correct to point out that there is no inherent jurisdiction in any particular court to hear appeals; the appellate jurisdiction of any particular court is the creation of statute: Solicitor v Law Society at 584 (para. 31) (see para. 27 above); Attorney General v Sillem (1864) 10 HL Cas 704; (1864) 11 ER 1200.
However, as we have seen, the issue involves not a right of appeal but the Court of Final Appeal’s function as a court of final adjudication. The Court's decision in Solicitor v Law Society is decisive in this respect. It is clear that by reason of that decision, Art.82 is engaged in the present appeal.
Mr Thomas, acknowledging the difficulties he had with this authority, submitted that the decision in Solicitor v Law Society (insofar as it dealt with the constitutional issue) was either obiter or was wrong.
On the first point, Mr Thomas pointed out that in Solicitor v Law Society (where the Court dealt with the former s.13 of the Legal Practitioners Ordinance Cap.159 which provided that appeals from the Solicitors Disciplinary Tribunal to the Court of Appeal were “final”), it was held that that provision was invalid for 2 reasons:-
First, it was not a law that was “previously in force” (for the purposes of Arts. 8 and 18(1) of the Basic Law) by reason of the application of s.2 of the Colonial Laws Validity Act 1865. The Court held that the provision was repugnant to a number of United Kingdom Statutes and Orders in Council.
Secondly, even though it was strictly speaking unnecessary to deal with the issue of constitutionality, the Court of Final Appeal did so after hearing full argument on the matter. It was regarded as “an issue of considerable public importance” (at 583 (para. 24)). The Court concluded that the provision was unconstitutional and therefore for this reason also invalid.
In respect of the submission that Solicitor v Law Society was wrongly decided, a number of grounds were identified. Distilled to its essentials, the intervener:-
Questioned the assumption made by the Court of Final Appeal that there existed a constitutional right of appeal when no such right was expressed in the Basic Law; and
Queried the approach of the court in the application of the proportionality test. It was suggested that it was novel (and therefore impermissible) to strike down legislation as being unconstitutional on the basis it was merely arbitrary, as opposed to the legislation being unconstitutional. Emphasis here was placed on that part of the judgment in para.31 wherein Li CJ said: “But limitation cannot be imposed arbitrarily by the legislature.”
I am unable to agree with these submissions. As to the first point, it is unnecessary for present purposes to determine whether or not that part of the Chief Justice’s judgment dealing with constitutionality, consists of obiter dicta. I am inclined to think it does not, but the present case is not the occasion to delve into the differences between an obiter dictum and a ratio decidendi. Even on the assumption that it was obiter, it is to be accorded considerable weight. The constitutional point was extensively argued and was considered a point of considerable public importance. It is also for this reason that the Ashwandar principles (see Ashwander v Tennessee Valley Authority (1935) 297 US 288 at 346-48; 56 SCR 466 at 482-4), upon which Mr Thomas relied, have little application. They provide at best merely general guidance. As Justice Brandeis, who propounded them, said at the commencement of his concurring judgment (relying on Blair v United States 250 US 273), the court should refrain from adjudicating on the constitutionality of a statute “unless obliged to do so in the proper performance of [its] judicial function, when the question is raised by a party whose interests entitle him to raise it”. It was proper for the Court in Solicitor v Law Society to deal with the constitutionality issue, and this was an issue that was properly raised in that case.
Nor am I persuaded at all that the decision in Solicitor v Law Society can be said to be wrong:-
First, it is clear from the discussion earlier in this Judgment that the true nature of the issue in this appeal involves looking at the function of final adjudication vested in the Court of Final Appeal. It does not involve the examination of a constitutional right of appeal as such.
Secondly the proportionality test is a well-established one and the Chief Justice in his judgment in Solicitor v Law Society was doing no more than setting it out. There is no question of a novel approach solely based on a concept of arbitrariness. It is clear that when the Chief Justice was using the word “arbitrarily” (in para.31 of the judgment), he was referring to the proportionality test.
Finally, the intervener also made submissions along the lines that the jurisdiction of the Court of First Instance to hear election petitions had to be regarded as a unique, sui generis jurisdiction. Para.25 of the intervener’s Case states:-
It is therefore submitted that the reasoning of this Court for its decision in A Solicitor does not necessarily carry a conclusion that legislative provisions for finality in the context of the determination of an election petition, consistently upheld by the PC, contravene the BL by diminishing the power of the CFA vested by BL.
It seems unlikely that the Court applied its mind to a finality provision in the present context where considerations of pressing public and political importance have led to a sui generis process for a final determination of election disputes, a process unlike the adjudication of civil disputes in a lis inter partes. The PC authorities cited in paragraphs 21 and 22 upholding such finality provisions do not appear to have been cited in the court.
A number of decisions of the Judicial Committee of the Privy Council were relied on by the intervener to demonstrate the uniqueness of the jurisdiction of the courts hearing election petitions. Terms such as a “special jurisdiction” or a “peculiar jurisdiction” have been used to describe the court’s jurisdiction here. Among the cases relied on were:- Theberge v Laudry (1876) 2 AC 102; Kennedy v Purcell (1888) 59 LT 279; Strickland v Grima  AC 285; De Silva v Attorney-General for Ceylon and others (1949) 50 Ceylon N.L.R. 481; Senanyake v Navaratne  AC 640; Patterson v Solomon  AC 579; Arzu v Arthurs  1 WLR 675; Nair v Yong Kuan Teik  2 AC 31; Prem Singh v Krishna Prasad  NZAR 385.
The thrust of the intervener’s submission seemed to be that since the jurisdiction given to the courts to hear election petitions was unique, the appellate function (under Art.82 of the Basic Law) was somehow diminished or even eliminated. In Theberge v Laudry, at 106, the Privy Council expressed the view that the jurisdiction of the court in dealing with election petitions did not involve the decision of “mere ordinary civil rights”; it was said to be an “extremely special” jurisdiction.
In Holmes v Angwin (1906) 4 CLR 297, the High Court of Australia regarded the court in such matters as not in substance functioning as a court at all but as “a new tribunal consisting of a Judge of the Supreme Court as a persona designata, to whose arbitrament the necessary questions of fact are to be referred for the assistance of the House of Parliament”: at 306-7 (in the judgment of Chief Justice Griffith). Barton J in the same case said at 309,
|The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants.|
There may be said to be some support for the intervener’s submission here in the judgment of Lam J in the Court of Appeal in the present case. After referring to Holmes v Angwin and passages from De Smith: Constitutional and Administrative Law (5th ed) dealing with Parliamentary privilege, the learned Judge referred to the election petition procedure of the court as an incident of legislative power. However, Lam J added there was insufficient argument on the point before the Court of Appeal and in any event, his observations were in the context of the question of proportionality.
For my part, I have found it difficult to understand the reasoning and underlying juridical basis for some of the older cases. It is, however, not only for that reason that I have not found them useful for this part of the appeal (they will again feature when we come to look at the issue of proportionality), but in Hong Kong, s.64(1) of the LCO (see para. 14(3) above) appears to me to be decisive in spelling out the precise nature of the role of the court in election petitions: the court has exactly the same functions as it has in relation to an ordinary cause of action within its jurisdiction.
For these reasons, it is clear that Art.82 of the Basic Law is engaged in this appeal. But is the restriction to it in the form of s.67(3) of the LCO proportionate? I must now turn to the issue whether the proportionality test (set out in paras 27 to 28 above) is satisfied.
Here, it is crucial at the outset to bear in mind that an election petition engages the public interest and not only the interests of the election protagonists themselves. The public interest here consists of the electorate and indeed the community as a whole in having in place a properly and legally elected legislature. Further, an election petition involves substantive rights, and not merely procedural rights. These substantial rights are political in nature.
There can be little doubt that the first two steps of the proportionality test are fulfilled. The Court of Appeal held this to be the case, and the petitioner did not really argue to the contrary:-
Given the importance of elections to the Legislative Council, and the work and duties of that institution, it is of course of the utmost importance that any dispute over the propriety or legality of a member of the Council, should be speedily determined.
There are numerous authorities that have referred to the importance of a speedy determination of an election petition. It is sufficient merely to refer again to Theberge v Laudry (in a passage referred to by the Court of Appeal in the present case at 106):-
A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known.
The evidence before the court (by way of an affirmation from a Principal Assistant Secretary of the Constitutional and Mainland Affairs Bureau) referred to the need for certainty in elections to the Legislative Council. Reference was made to the fact that the term of office of Legislative Council was 4 years, so that a lengthy appellate process would be to the detriment of the functioning of the Council. There is force in these points.
The speedy determination of an election petition is therefore the aim of s.67(3). It is a legitimate aim and that statutory provision is rationally connected to the aim.
But is s.67(3) in restricting the right of appeal in election petitions more than is necessary to achieve that purpose? Here, it is important to understand the nature of the restriction contained in s.67(3). That provision not merely restricts an appeal, it actually eliminates it: under no circumstances can an appeal be launched.
As a matter of approach to this aspect of whether a restriction or limitation goes too far, the court has often to look at competing interests. One must examine the nature of the constitutional provision in question against the legitimate aim that the relevant restriction seeks to address, and above all, bear in mind the public interest. In other words, a balancing exercise may be involved.
In addressing these considerations, it is sometimes helpful, particularly in the context of the public interest, to have regard and pay due respect to the views of the legislature in relation to any statute under examination. This has been referred to in previous cases by a number of expressions – the margin of appreciation to be accorded to the views of the legislature, or deferring to the views of the legislature, among other expressions. I shall, for convenience, refer to this aspect as the margin of appreciation. In an appropriate case, the margin of appreciation can assist in resolving the issue of whether a restriction on a constitutional right is “no more than necessary”.
The margin of appreciation concept is now well established in our courts. Mr Martin Lee SC (for the petitioner) submitted that this concept, from the jurisprudence of the European Court of Human Rights, was only applicable in the context of a supra-national court having regard to the views of national legislatures: see R v DPP ex p Kebilene  2 AC 326, at 380H (per Lord Hope of Craighead). However, the margin of appreciation concept is now regularly applied by national courts in relation to the views of the national legislature: see for example Brown v Stott  1 AC 681, RJR-MacDonald Inc. v Attorney General of Canada (1995) 127 DLR (4th) 1. In Hong Kong, this concept has been applied by the courts in relation to the views of the Legislature (see, for example, Lau Cheong v HKSAR (2002) 5 HKCFAR 415; Chan Kin Sum v Secretary for Justice)and even in relation to the views of professional bodies (see Kwok Hay Kwong v Medical Council of Hong Kong  3 HKLRD 524).
There are, however, obvious limits to the utility of this concept. It is important to acknowledge that while the views of the legislature are to be considered, it is the court that has the ultimate responsibility to determine whether legislation is constitutional. This is a matter of law, only for the courts to determine.
In the present context, the views of the Legislature are to be accorded due weight, for the reason that a provision such as s.67(3) of the LCO (even though involving the public interest) also deals with a matter that has direct relevance to the operation and constitution of the Legislative Council itself.
The Privy Council cases referred to earlier (see para. 44 above) can perhaps best be seen as examples where due weight has been accorded to the legislative intent behind finality provision: see for example Theberge at 108.
The evidence before the court shows that the origin of the finality provisions in election matters in Hong Kong dates back to 1955 when the Urban Council Ordinance 1955 was enacted. The relevant provision in that Ordinance was s.39(1) which provided for the finality of decisions of the Supreme Court in election petitions. Prior to 1955, the validity of elections was determined, not by the courts, but by the Governor-in-Council. The finality provisions continued through various Ordinances dealing with election petitions in relation not only to the Urban Council and the Legislative Council, but also to other elections such as for the District Council and Village Representatives. Both before and after 1 July 1997, there were in place restrictions on the right of appeal in election petitions for the Legislative Council: before 1 July 1997, this was contained in s.35(1)(b) of the Legislative Council (Electoral Provisions) Ordinance Cap.381 (this Ordinance was not adopted as part of the laws of Hong Kong on the establishment of the HKSAR); after 1 July 1997, the Provisional Legislature passed the present LCO on 3 October 1997.
There can sometimes be much force in arguments based on margin of appreciation. In the present case, there is force in the submissions regarding the desirability of a speedy determination of an election petition. Although Mr Lee submitted that s.71 of the LCO (see para. 14(8) above) made time of less importance (since the acts done by a person, who is eventually declared under an election petition not to have been duly elected, are not invalidated), one must accept as a starting point it is clearly desirable that any doubts over the election of a member of the Legislative Council should be resolved at the earliest opportunity.
However, I am not persuaded in the present case that the burden (on the first respondent and the intervener) on the issue of proportionality has been discharged. I am of the view that s.67(3) goes much further than is necessary to deal with the said aim of speedy determination in election petitions.
One is first reminded that the nature of the restriction is absolute: there is simply no avenue of appeal, however much in error the Court of First Instance may have been. Further, the following point was raised by Sir Anthony Mason NPJ in the course of submissions that, for my part, has considerable significance: it is perhaps easy to see the possibility of points of constitutional importance being raised in the course of an election petition and yet the effect of a provision such as s.67(3) is that no appellate court (and in particular the Court of Final Appeal) will have an opportunity to deal with them.
Next, it is difficult to appreciate just why there should be an absolute bar on an appeal when comparable legislation (even within the same ordinance) does not contain such a restriction. I am here referring to relevant provisions in the CEEO and s.73 of the LCO (both of which have already been referred to: see paras 15 and 18 above).
As indicated earlier, the CEEO provides for a limited right of appeal from an election petition from the Court of First Instance directly to the Court of Final Appeal: see s.22(1)(c) of the HKCFAO; s.34(2) of the CEEO (paras. 11 and 18(1) above).
In the affirmation evidence adduced on behalf of the intervener, an explanation is sought to be provided to explain the differences between the CEEO and the LCO:-
The time within which an election petition must be lodged under the CEEO is 7 days from the date an election result is declared: s.34(1) of the CEEO (see para. 17(2) above). This is to be contrasted with the 2-month period under the LCO: s.65 of the LCO (para. 14(4) above). Further, any application for leave to appeal to the Court of Final Appeal following a decision of the Court of First Instance in an election petition under the CEEO must be brought within 7 working days after the handing down of the judgment: s.34(2) of the CEEO (para. 18(1) above). Thus, it is contended, the relevant time frame under the CEEO is a much tighter one than under the LCO. In any event, there is usually a 3-month gap between elections for the CE and the assumption of office, this allowing ample time for the determination of disputes even at the level of the Court of Final Appeal. This is to be contrasted to the position of elections for the Legislative Council where the gap between the date of elections and the assumption of office is less than a month.
The Chief Executive is the head of the HKSAR, accountable to the Central People’s Government: Art.43 of the Basic Law. It is therefore appropriate that there should be no doubts at all as to the legality of his position.
In my judgment, these points carry little weight:-
The time frame under the CEEO and the LCO, as well as the time between elections and assumption of office, are admittedly different, but there is no reason why they cannot be made similar, if not identical. Moreover, given the importance of what may be in issue in election petitions, the courts can be expected to act with appropriate expedition.
Both the CEEO and the LCO deal with important elections, one involving the head of the executive branch of government, the other the Legislature. It is difficult, with respect, to see the reason or logic for the inclusion of a right of appeal from the decision of the Court in election petition under the CEEO but not in relation to elections for the Legislative Council.
I also note that the possibility of judicial review proceedings (albeit limited) in relation to the election of the Chief Executive: s.39 of the CEEO (para. 18(2) above). There is no applicable finality provisions in relation to these proceedings. They are therefore subject to the usual appellate processes. This is not a provision that exists under the LCO.
Whatever the position of judicial review proceedings in relation to the elections for the Legislative Council, the LCO does provide for another means of challenging the qualifications of a member of the Legislative Council to sit as such, namely, s.73 (see para x above). Whatever the ambit of that provision, whether or not there is any overlap between proceedings under that provision and proceedings under the election petition procedure under Part VII of the Ordinance, does not fall to be decided in this case. The point of importance for our purposes is that whether under s.73 or under the election petition procedure, the matter in issue is the qualification or ability of a member of the Legislative Council to be or to remain in the Council. One would have thought the urgency in having to determine such issues is the same under both provisions.The Court of Appeal said this at para 37 of the judgment:
There are also cost and resource implications. The possibility of multiple appeals (here we are concerned with an immediate appeal) has costs implication, which may inhibit participation in elections.
With respect, in the absence of any evidence which suggests that is to be the position, it is difficult to attach too much weight to this point.
Whatever might be the position of judicial review proceedings in relation to elections for the Legislative Council, the LCO does provide for another means of challenging the qualification of a member of the Legislative Council, namely, s.73 (see para. 15 above). The precise ambit and applicability of that provision, and whether or not there is any overlap between proceedings under that provision and proceedings under the election petition procedure under Part VII of the Ordinance, do not fall to be decided in this case. The point of importance for our purposes is that, whether under s.73 or under the election petition procedure of the LCO, common to both may be a challenge to the qualification or eligibility of a member of the Legislative Council, whether to be elected to or remain in the Council. One would have thought the urgency in having to determine such issues ought to be the same under both procedures.
No explanation was given by the first respondent or the intervener (the burden was on them) to demonstrate the reason for this difference of approach. One cannot readily conceive of one. In the absence of a cogent explanation, it is difficult to escape the conclusion that the bar on an appeal in an election petition under the LCO has gone much further than is necessary to deal with the need to have election disputes quickly disposed of. Further, in these circumstances, the margin of appreciation can have little significance. Where, essentially, the legislation is inconsistent, there is great difficulty in understanding just what is it the court is asked to appreciate.
Reference was made by the parties to the equivalent legislation in other jurisdictions, among them Australia, the United Kingdom and the United States. I am grateful to the parties for providing the Court with these materials, but in the end I have found them of limited utility. The only real conclusion is that each jurisdiction adopts the system most suited to itself and there is for this reason no uniformity of approach (other than a recognition that a speedy determination of election disputes is important). For example, within Australia, only Tasmania and Queensland provide for limited rights of appeal, but not the other jurisdictions. The United Kingdom provides for one stage of appeal. In the United States, there is likewise no uniformity: some States provide for no appeals at all, some an appeal to the State Legislature, others a right of appeal to the courts.
In our case, I have found critical the existence of appellate system procedures under the CEEO and s.73 of the LCO, this juxtaposed alongside the absence of such a procedure for election petitions under the LCO. I am not aware that any such juxtaposition exists in other jurisdictions.
The Court of Appeal found of considerable weight the need for speed of finality in relation to the determination of disputes for the Legislative Council elections and also took into account the fact that in other jurisdictions (the United Kingdom and Australia were referred to) there was either no right of appeal at all or only one level of appeal. For his part, Lam J also attached weight to the margin of appreciation factor. However, as we have seen, it is difficult to rationalize the inconsistency in approach between on the one hand, the bar on an appeal for election petitions under the LCO (s.67(3)) and on the other, the position under the CEEO and s.73 of the LCO. Had the Court of Appeal been fully apprised of this aspect, the outcome may well have been quite different.
The Court of Appeal also said this at para.37 of the judgment: “There are also costs and resource implications. The possibility of multiple appeals (here we are concerned with an intermediate appeal) has costs implications, which may inhibit participation in elections”. With respect, in the absence of any evidence which suggests this to be the position, it is difficult to attach weight to this point.
Accordingly, in my judgment, the burden to demonstrate that the restriction in s.67(3) of LCO satisfies the proportionality test, has not been discharged. It therefore follows that s.67(3) of the LCO must be declared unconstitutional as being inconsistent with Art.82 of the Basic Law (insofar as the finality aspect is concerned). It may be that suitable changes can be made to the legislation to ensure that any restrictions or limitations on the right of appeal are indeed no more than necessary, but this is a matter for the Government and the Legislature to consider, taking into account no doubt those provisions in comparable legislation to which reference has been made.
As a final argument, Mr Thomas submitted that the appeal should in any event be dismissed on the basis that it was futile. The argument here proceeded along the lines that since the LCO made no provision (obviously) for the consequences of an appeal from the decision of the Court of First Instance in an election petition and that s.14(3) of the HCO (providing that the Court of Appeal had the same powers as the Court from which an appeal is brought) had no application on the basis that the jurisdiction of the courts in an election petition was a sui generis one, any appeal was pointless.
I have no hesitation in rejecting this argument. For the reasons expanded on earlier in this judgment (paras 43 to 49), the jurisdiction of the Court in hearing election petitions is not a sui generis one. Section 14(3) of the HCO would therefore be applicable, if there were to be an appeal to the Court of Appeal.
The consequence of a determination that the finality aspect of s.67(3) of the LCO is unconstitutional is that the present appeal must be allowed. At the conclusion of his submissions, Mr Thomas asked that the parties be permitted to address the court further on the appropriate order to be made in such an event. Accordingly, I would make the following orders which will become absolute within 14 days from the date of this Judgment (unless any party lodges written submissions seeking a different order as provided for in para. 77 below):-
The appeal is allowed;
There be a declaration that s.67(3) of the Legislative Council Ordinance, insofar as it provides for the finality of the determination of the Court of First Instance after the trial of an election petition, is unconstitutional and invalid;
The appeal on the merits from the decision of Reyes J dated 9 April 2009 is to be remitted to the Court of Appeal for determination;
The costs of the petitioner before this Court and in the Court of Appeal should be paid by the first respondent, such costs to be taxed if not agreed; and
No order for costs is made regarding the intervener (this reflects the consent order made on 18 March 2010 when leave was granted to intervene (see para. 6 above)).
In the event that any party wishes a different order to be made to those set out above, that party must lodge written submissions with the Registrar within 14 days of the date of this Judgment and any written submissions in reply are to be lodged within 14 days thereafter.
Justice Bokhary PJ
For the reasons so fully and clearly stated by the Chief Justice, I would dispose of this appeal in the manner which he proposes. But the expressions “margin of appreciation” and “deference” having been extensively used by counsel in the course of the hearing, I will add something on those expressions. And reference having been made in the course of the hearing to the rules articulated in the United States Supreme Court by Mr Justice Brandeis in Ashwander v Tennessee Valley Authority 297 US 288 (1936) at pp 346-348, I will add something on those rules.
I have no difficulty with the sense in which the expressions “margin of appreciation” and “deference” are each used in the Chief Justice’s judgment. But for my own part, they are expressions with I prefer to avoid when the Court is engaged in constitutional review. A margin of appreciation is best known as what the European Court of Human Rights accords to the nations of the European Union. That is a context in which a transnational court has to bear in mind two things:
first, the respect due to national sovereignty and autonomy and,
secondly, its own limited familiarity with local conditions.
As for deference, the Court must not and does not defer to anybody on the question of what is or is not constitutional. What the Court will do is to recognise that, save where absolute and non-derogable rights and freedoms are concerned, there will generally and naturally be a range of legislative choices as to which any preference that the Court may have is irrelevant. Where legislation lies outside that range, the Court will intervene.
Turning to the Ashwander rules, my understanding is that in the United States the doctrine underlying those rules came into existence long before the Ashwander decision itself and remains extant, sometimes emphasised and sometimes not depending on the circumstances of the case. That is often if not always the way with doctrines. Indeed this particular doctrine might be thought to have been honoured more in the breach than in the observance by the United States Supreme Court in their Honours’ greatest case, Marbury v Madison 5 US 137 (1803). And however all of that may be, it has not been our practice to avoid deciding a constitutional point just because there is available some other way in which to dispose of the appeal. In the circumstances of Hong Kong, such a practice would not serve what has to be done to uphold the Basic Law, which every judicial officer is sworn to do, and develop Hong Kong’s constitutional law as it should be developed.
Justice Chan PJ
I agree with the Judgment of the Chief Justice.
Justice Ribeiro PJ
I agree with the Judgment of the Chief Justice.
Sir Anthony Mason NPJ
I agree with the Judgment of the Chief Justice.
Chief Justice Ma
For the above reasons, the appeal is unanimously allowed. The Court also makes the orders set out in paras. 76 to 77 above.
Martin Lee SC, Hectar Pun and Lee Siu-him (instructed by Messrs Ho, Tse, Wai & Partners) for the appellant
Daniel R Fung SC, Teresa Wu and Gary Lam (instructed by Messrs DLA Piper) for the 1st respondent.
The 2nd respondent absent.
Michael Thomas SC and Sara Tong (instructed by the Department of Justice) for the intervener.
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